Citation Nr: 22015606 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 15-24 421 DATE: March 18, 2022 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a right wrist disorder is granted. REMANDED Entitlement to service connection for a right wrist disorder is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of a right wrist fusion and/or debridements for a pin site infection is remanded. FINDINGS OF FACT 1. In a final decision issued in March 1987, the Agency of Original Jurisdiction (AOJ) confirmed and continued a prior denial of service connection for a right wrist disorder. 2. Evidence added to the record since the final March 1987 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right wrist disorder. CONCLUSIONS OF LAW 1. The March 1987 decision that confirmed and continued a prior denial of service connection for a right wrist disorder is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1987). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a right wrist disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2011 by a Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 60 days for the submission of additional evidence, which was received in December 2021. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right wrist disorder. By way of background, the Veteran's original claim for service connection for a right wrist disorder was received in December 1980; however, as he failed to report for a scheduled VA examination, his claim was denied in August 1981. In September 1981, the Veteran reported that he had been unable to attend such VA examination and requested that it be rescheduled. While it does not appear that he was afforded a VA examination, the AOJ adjudicated his claim for service connection for a right wrist disorder in a February 1982 rating decision, which was issued in March 1982. At such time, the AOJ considered the Veteran's service treatment records (STRs) and noted that he hurt his hand prior to service and had a right wrist deformity, diagnosed as Kienböck's disease since 1975. Thus, the AOJ found that Kienböck's disease, which is a progressive osteochondrosis of the semi-lunar bone of the wrist, which can affect other bones of the wrist, existed prior to the Veteran's entry into service and no aggravation is shown beyond the normal progression. Following the receipt of post-service VA treatment records showing a right wrist fusion in December 1986 and debridements for a pin site infection in January 1987, the AOJ confirmed and continued the prior denial of service connection for a right wrist disorder as the evidence still did not establish in-service aggravation of such pre-existing disorder. Following the receipt of additional post-service VA treatment records, the AOJ again confirmed and continued the prior denial of service connection for a right wrist disorder as the evidence did not warrant a change in the previous determination that such disorder was not aggravated by the Veterans military service. In March 1987, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been associated received. In this regard, while the Veteran argues that his complete STRs were not of record until December 2014, the Board finds such argument to be without merit. In this regard, the March 1982 rating decision explicitly considered his STRs and such are included in a single entry in his electronic claims file. Moreover, while such has an upload date of December 2014, such was the date that the paper STRs were scanned into such electronic file, not the date they were received. Furthermore, while the AOJ sought the Veteran's reported in-patient clinical records in November 2014, such were determined to be unavailable in April 2015. Therefore, the March 1987 decision is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1987). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the March 1987 decision, additional evidence consisting of updated post-service treatment records, physician statements, a favorable Social Security Administration (SSA) decision, and the Veteran's lay statements, to include his testimony at the October 2021 Board hearing. In pertinent part, the Veteran reported that his pre-existing Kienböck's disease had resolved following the removal of his lunate bone in 1975, and he had full function of his right wrist without any residuals. He further stated that his right wrist was asymptomatic until September 1979 when a TDU weight fell on it. Additionally, the newly received post-service treatment records reflect additional diagnoses of a right wrist disorder, to include arthritis and neurological impairment. Furthermore, in July 2015, the Veteran's private treatment provider, Dr. M.B., stated that the Veteran has a history and examination findings consistent with ongoing pain in his right wrist related to CMC joint arthritis, which was most likely secondary to a less than optimal fusion position with the wrist in slight flexion but may also have been exacerbated by a traumatic injury he sustained in the Navy when a heavy metal object struck his wrist in the past. Similarly, in November 2021, Dr. M.B. noted that the Veteran had a prior surgery to the right wrist, which was a probable Kienböck's disease surgery, but, prior to his September 1979 injury, the Veteran reported that he was able to do pushups without discomfort and was functioning well. He further stated that, due to the multiple debridements for a pin site infection, he had developed an injury to the superficial radial nerve with persistent neuroma and pain, and ultimately opined that all of these symptoms are more likely than not secondary to the weight that was dropped onto his right wrist, which either primarily caused or exacerbated these problems. Consequently, as the Veteran's claim for service connection for a right wrist disorder was previously denied based on the lack of a nexus, or relationship, between a current right wrist disorder and his military service, the Board finds that the evidence added to the record since the final March 1987 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right wrist disorder. Thus, as new and material evidence has been received, such claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a right wrist disorder. 3. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right wrist fusion and/or debridements for a pin site infection. The Veteran contends that, as a result of an in-service injury when a TDU weight fell on his right wrist in September 1979, his pre-existing Kienböck's disease was aggravated or he incurred a separate right wrist disorder. He further alleges that, as a result of a right wrist fusion and/or debridements for a pin site infection, performed by VA in December 1986 and January 1987, respectively, he has additional residuals, to include neurological impairment. In this regard, the Veteran claims that the fusion was incomplete and in the wrong position, and the debridements were done improperly. In this regard, the Veteran's February 1979 entrance examination reflects that he had prior fracture of the right wrist, and had undergone an open reduction and removal of lunate bone in 1975; however, he had no residuals with full function. A September 1979 STR reflects that the Veteran sustained trauma to the right navicular area one week prior when a TDU weight, weighing approximately 22 pounds, was dropped onto his right wrist from about six feet. At such time, it was noted that he had limited range of motion due to previous surgery for Kienböck's syndrome in 1975. In October 1979, he complained of pain on the ulnar side of his right wrist since he sustained trauma to that region one month previously. Also, in November 1979, it was noted that the Veteran had no problems in relation to his Kienböck's disease until September 1979 when he was struck on the dorsal side of his right hand with a weight. The Veteran's April 1980 separation examination also reflects that he had pain in his right wrist and lacked full range of motion. Post-service VA treatment records reflect that the Veteran had a right wrist fusion in December 1986 and debridements for a pin site infection in January 1987. As indicated previously, in July 2015, Dr. M.B. stated that the Veteran has a history and examination findings consistent with ongoing pain in his right wrist related to CMC joint arthritis, which was most likely secondary to a less than optimal fusion position with the wrist in slight flexion, but may also have been exacerbated by a traumatic injury he sustained in the Navy when a heavy metal object struck his wrist in the past. Similarly, in November 2021, Dr. M.B. noted that the Veteran had a prior surgery to the right wrist, which was a probable Kienböck's disease surgery, but, prior to his September 1979 injury, the Veteran reported that he was able to do pushups without discomfort and was functioning well. He further stated that the Veteran's persistent right wrist pain secondary to worsening CMC joint arthritis was exacerbated by the fact that the fusion did not cross to the third metacarpal and was performed with the wrist in the wrong position (as opposed to the typical dorsiflexed position), which caused increased strain and decreased grip strength. Dr. M.B. also indicated that, due to the multiple debridements for a pin site infection, he had developed an injury to the superficial radial nerve with persistent neuroma and pain, and ultimately opined that all of these symptoms are more likely than not secondary to the weight that was dropped onto his right wrist, which either primarily caused or exacerbated these problems. Thus, in light of foregoing, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his right wrist disorder. The Board further finds that a remand is necessary to obtain outstanding records from the SSA. In this regard, in December 2021, the Veteran submitted a May 2011 SSA decision awarding disability benefits based, in part, on right hand numbness as of October 2009. VA has a duty to obtain SSA records when it has actual notice that the Veteran has applied for SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the Veteran's complete SSA records, including all underlying medical records, should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete SSA records, including all underlying medical records, from SSA. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 2. Afford the Veteran an appropriate VA examination so as to determine the nature and etiology of his right wrist disorder. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests should be accomplished. Thereafter, the examiner should address the following inquiries: (A) Identify all current right wrist disorders, to include to include arthritis and neurological impairment. (B) For each current disorder, the examiner state whether such clearly and unmistakably existed prior to the Veteran's entry to service in February 1979. If so, he or she should describe the evidence supporting such determination. (i) If there is clear and unmistakable evidence that a disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that a disorder pre-existed service, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disorder had its onset in, or is otherwise related to service, to include when the Veteran sustained trauma to the right navicular area when a TDU weight, weighing approximately 22 pounds, was dropped onto his right wrist from about six feet. (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has an additional disability was caused or aggravated by the fusion and/or debridements for a pin site infection of his right wrist by VA in December 1986 and January 1987, respectively? If so, please identify the nature of such disability (or disabilities). (D) If the Veteran has an additional disability related to his right wrist fusion and/or debridements for a pin site infection performed by VA in December 1986 and January 1987, respectively, is it at least as likely as not (i.e., a 50 percent or greater probability) that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination? (E) If the Veteran has an additional disability, to include a neuroma to his right wrist, related to his right wrist fusion and/or debridements for a pin site infection performed by VA in December 1986 and January 1987, respectively, is it at least as likely as not (i.e., a 50 percent or greater probability) that such additional disability was due to an event not reasonably foreseeable? A "not reasonably foreseeable" event is one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.